SUMMARY: The Massachusetts Appeals Court affirmed a defendant’s convictions on four counts of rape, despite the fact that the events at trial violated a strict interpretation of the First Complaint doctrine, and, additionally, separate First Complaint witnesses/evidence were proffered for the separate rapes.

The defendant was convicted of four counts of rape and one count of assault and battery of the alleged victim, also known as the “complainant.” The rapes occurred on three separate dates in 2013: January 1st, July 8th, and July 11th.

The defendant and the complainant had been a romantic couple, and the rapes occurred during their time together. The complainant did not immediately disclose the January 1st or July 8th rapes to anyone because she did not believe them to be rapes at those times.

The complainant first described the July 11th rape to a police detective on that same day.

Also on July 11th, the complainant filed for a restraining order against the defendant. When compiling the paperwork for the restraining order, the complainant spoke with a victim witness advocate, and during that conversation the complainant concluded that the defendant had raped her on July 8th. The complainant then filed the affidavit for the restraining order, and included in the affidavit a description of both the July 8th rape and the July 11th rape.

Before the trial began, the Superior Court concluded that the First Complaint of the July 8th rape was the affidavit, not the complainant’s conversation with the victim witness advocate, despite the defendant’s assertions to the contrary. The defendant did not object to this finding, and did not object later at trial when a redacted version of the affidavit–which included the mention of the July 8th rapes–was admitted into evidence.

At trial, the complainant testified that she told the police detective about all three rapes. However, when the police detective was called to the stand, he denied that the complainant had told him about the January 1st rape, and the complainant herself, on cross-examination, admitted she could not remember when she first disclosed the January 1st rape.

All told, the Superior Court found the complainant’s official First Complaints for each rape:

July 11th rape First Complaint= the complainant’s statements to the police detective

July 8th rape First Complaint=complainant’s July 11th affidavit for the restraining order.

January 1st rape First Complaint: none, no First Complaint registered; the police detective denied complainant discussing it with him.

At trial, the defendant objected to the police detective’s testimony regarding the July 11th rape, arguing that the testimony was a second complaint, and that the affidavit (which had been redacted regarding the July 11th rape) was the true First Complaint. The Superior Court overruled the objection, stating that the police detective’s testimony on the July 11th rape was the First Complaint, and therefore admissible.

The complainant asserted on the stand that she had told the police detective about the January 1st rape on July 11th. On cross, the complainant admitted she might have not told him on that date, but on a later date. The police detective contradicted her, stating that she hadn’t told him about the January 1st rape on July 11th.

The defendant appealed his convictions on four grounds:

First, that the Superior Court violated the First Complaint doctrine by allowing the police detective to testify about the July 11th rapes. The defendant argued that the affidavit was the true First Complaint about the July 11th rapes, as it contained information regarding both the July 8th and the July 11th rapes.

Second, that the Superior Court violated the First Complaint doctrine by allowing the affidavit to serve as First Complaint evidence for the July 8th rapes. The defendant countered that the victim witness advocate was the true First Complaint witness for the July 8th rape.

Third, that the Superior Court should not have allowed the complainant to testify about informing the police detective about the January 1st rape, as there was no corresponding First Complaint witness for this rape.

Fourth, that the Superior Court’s limiting instructions were insufficient.

OPINION:

The Appeals Court went into a lengthy discussion of the First Complaint doctrine:

The First Complaint doctrine applies to sexual assault criminal cases where a witness is called to give credibility to the complainant’s testimony.

First Complaint testimony from a witness may be admitted for a limited purpose of assisting the jury in determining whether to credit the complainant’s testimony about the alleged sexual assault.

The testimony may not be used to prove the truth of the allegations.

The First Complaint witness may testify about the facts, circumstances, and the details of the First Complaint.

The complainant is also allowed to testify as to the details of her First Complaint.

Testimony is not allowed from anyone else whom the complainant told about the alleged sexual assault. In other words, the prosecution is limited to only the First Complaint witness to boost the credibility of the complainant’s claims.

Nor can the complainant testify about telling any other people besides the First Complaint witness about an incident of sexual assault.

However, the First Complaint doctrine is not a strict, bright-line rule, but a body of guiding principles for trial judges, who are in the best position to determine admissibility.

The standard of review on a First Complaint objection is abuse of discretion.

The Appeals Court found that the affidavit was the proper First Complaint of the July 8th rape and not the victim witness advocate, while the complainant first told about the July 11th rape to the police detective. This made the police detective the proper First Complaint witness for the July 11th rape.

In finding that the affidavit, and not victim witness advocate, was the First Complaint witness for the July 8th rape, the Appeals Court noted that the defendant had failed to lodge an objection to the pretrial finding that the affidavit was the July 8th First Complaint; had failed to object again at trial when it was admitted into evidence; and “the victim’s conversation with the advocate did not include the complaint at issue, and the victim did not so testify at trial.”

In regards to the separate First Complaint witness/evidence for the July 8th and July 11th rapes, the Appeals Court stated that “where the two proffered [first] complaints related to two separately charged offenses that took place on separate, specified dates, their admission did not constitute an abuse of discretion.”

“The July 8 and 11 rapes could have been tried separately, and there is no question that, in individual trials, first complaint evidence would have been permitted for each….What happened in this case is therefore very different from the ‘piling on’ practice that was the focus of the court’s concern in King.”

The Appeals Court also found, in regards to the complainant’s testimony regarding the January 1st rape, “[e]ven if, in the absence of a corroborating first complaint
witness, the victim should not have been permitted to testify that she made a complaint, we see no substantial risk of a miscarriage of justice. The victim’s extremely brief testimony about when she disclosed the January 1 rape was contradictedboth by the detective and, on cross-examination, by her own admission that she was not sure when she had disclosed that incident.”

Finally, the Appeals Court found that the limiting instructions were adequate, being made both contemporaneously with the First Complaint and at the final jury charge, and noted that the contemporaneous requirement was not a hard-and-fast rule.

ANALYSIS:

The Appeals Court emphasized that the First Complaint doctrine was not a hard-and-fast rule, but instead a set of guiding principles, and specifically cited cases where the First Complaint doctrine had not been strictly followed, but whose verdicts nonetheless had been upheld on appeal.

Practitioners in sexual assault cases should become familiar with the First Complaint doctrine expounded upon above, as well as the fact that it is an flexible doctrine in all aspects, including regarding limiting instructions.

Where there are multiple sexual assault counts, the test for admissibility for multiple First Complaint witnesses/evidence is if the defendant had separate trials for each charge, would a First Complaint witness/evidence be allowed for at least one trial. In other words, a practitioner should examine whether alleged First Complaint evidence is merely “piling on” for a specific charge, and if so have such evidence excluded.

It is important for practitioners to object to the any pretrial rulings as to what constitutes a First Complaint, and to object again at trial when the so-called First Complaint is introduced. The Appeals Court made much of the fact that the defendant had failed to object to the pretrial ruling that the July 11th affidavit was the First Complaint for the July 8th rape, and also made much of the fact that when the affidavit had been admitted into evidence, the defendant had failed to object again.

The Appeals Court left open the question of whether a complainant may testify that she made a First Complaint when that witness or evidence is not produced at trial.